Strict Scrutiny - Roe is dead. Now what?

Episode Date: June 25, 2022

Today the Supreme Court issued their opinion in Dobbs v. Jackson Women's Health Organization. It overruled Roe v. Wade and Planned Parenthood v. Casey, meaning there is no longer constitutional protection for the right to an abortion. Melissa, Leah, and Kate recap the horrific opinion by Justice Alito and the somehow-worse concurrence by Justice Thomas, and also read some passages straight from the dissent.You’re angry. We’re angry. Let’s do something about it. From directly supporting patients who need abortions right now, to electing pro-choice candidates in 2022 and building a progressive majority over the long term, you can find everything you need to fight back in our Fuck Bans Action Plan hub at votesaveamerica.com/roe. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about, I don't even know how to describe, the Supreme Court. The one that was just yesterday favorably citing Dred Scott versus Sanford, that's Supreme Court. And honestly, I can't even make a joke right now. I can.

I invite you to try. They're a 10, but they keep citing Dred Scott. They're a 10, but they just took away my rights. Denied me legal personhood. So we knew this day was coming. But the fact that we knew that it was coming doesn't actually make it any easier. But it's here. And we do need to kind of work through what it means and what comes next. I guess like our self-care is doing that together and also with our listeners. So let's do it. So we're your hosts who now officially possess fewer constitutional rights than we did yesterday. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Littman. So the it that is here that Kate was describing, of course, is the Supreme Court's opinion in Dobbs v. Wade and Planned Parenthood v. Casey, the decisions recognizing a constitutional right to decide to have an abortion. Maybe we can start out with what Alito's majority refused

to acknowledge, namely the consequences this decision will have on women's lives. The joint dissent by Justices Breyer, Kagan, and Sotomayor did manage to center this. It is no consolation that the dissent is well done, but it is worth starting there just in thinking about where we are. And Leah mentioned that the dissent was authored by three justices, Breyer, Kagan, and Sotomayor. So it's jointly authored. It doesn't identify a single author. That is quite rare. And there's kind of a special force when the justices speak with one voice like this, the three in dissent. Now, parts of it, I think, are pretty clearly identifiable as Kagan, as Sotomayor, as Breyer, but they didn't write separately. They joined

their voices in this really powerful dissent. And it's actually so powerful, because we have now read the whole thing, that we would just actually read some passages from it. First, just the effect of the decision that Leah was alluding to. The dissent writes, Today's decision strips women of agency over what even the majority agrees is a contested and contestable moral issue. It forces her to carry out the state's will, whatever the circumstances and whatever the harm it will wreak on her and her family. It takes away her liberty. After today, young women will come of age with fewer rights than their mothers and grandmothers had. The dissent went further. They noted that whatever the exact scope of the coming laws,

one result of today's decision is certain, the curtailment of women's rights and their status as free and equal citizens. And this was obviously a nod to Justice Ginsburg, their departed colleague who was perhaps the most stalwart defender of abortion rights on the court. They went on to say that a state can thus transform what, when freely undertaken, is a wonder birth into what, when forced, may be a nightmare. The joint dissent also highlighted some of the specific consequences of complete and total abortion bans, given that a lot of these bans don't make exceptions for cases of rape or incest or where there isn't really any question

that the fetus isn't compatible with life. So the Joint Dissent writes, under those laws, a woman will have to bear her rapist's child or a young girl her father's child, no matter if doing so will destroy her life. So too, after today's ruling, some states may compel women to carry to term a fetus with severe physical anomalies sure to die. There is also no question that this decision, which allows states to curtail abortion access, will affect access to care for miscarriages, which is the same set of procedures that is used for abortions. In Texas, there are also already problems accessing treatment for ectopic pregnancies, which are not viable pregnancies, and threaten the life and health of the pregnant person. This decision also has immediate consequences for abortion care. For

example, Planned Parenthood in Wisconsin had, even before this decision, announced that they had stopped scheduling appointments after today, anticipating this decision. And even as we are recording, now appointments are being canceled in states that have trigger laws, laws set to ban abortion in the event that Roe and Casey were overruled. Okay, so we should probably break down how the majority reached its result by looking, at least briefly, at the reasoning. The majority's reasoning is really similar to what was in the leaked draft opinion that we broke down at some length when it was first leaked. The opinion retains all of the really, really objectionable stuff that we highlighted in our emergency episode. It retains the reference to safe haven laws as if those laws

and other developments in society have somehow solved sex discrimination and pregnancy discrimination and therefore women no longer need, if they ever needed at all, control over their reproductive lives. There is the real peak Trulito invocation of Justice Ginsburg's criticisms of Roe versus Wade. And there is the elevation of the legal test to determine what rights are fundamental and therefore protected by the Constitution, if they're not explicitly listed in the Constitution, as basically requiring that those rights be deeply rooted in history and tradition. One of the reasons why all of this is concerning, and we have previously noted this, is because you can easily transplant all of that

logic to an opinion that overrules a set of other rights of heart and home. So for example, this logic applies with equal force to marriage equality, to the right to contraception, the right of parents to raise their children in the manner of their choosing. And as it's noted, until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Note state constitutional provision had recognized such a right. Yes, and that is true for all of these other things. So if Roe is a constitutional apostasy because it is not deeply rooted in history and tradition, well, buckle up for same-sex marriage, contraception, and everything else. And Justice Thomas also hit this tune,

and so we will get to him eventually. But I just wanted to highlight that. There's no stopping point for this. No. And once again, even though this opinion purported to claim some sort of methodological high ground in using a principled test that is based in traditionalism, just like, you know, yesterday's opinion in Bruin tried to claim some sort of methodological high ground with originalism. The opinion is just a complete methodological disaster and so revealing about many of the flaws in the court's nods to history, tradition, and originalism. So, for example, this opinion, the majority opinion in Dobbs, relies on pre-ratification history before the Constitution was ratified back to English common law. As the Joint Dissent points out, you know, it goes as far back as the 13th, parenthesis, the 13th, exclamation mark, century. And then it cites the court's own slip opinion in Brohn that claimed historical evidence that long predated ratification may not

illuminate the scope of a constitutional right because Bruhn had taken this Goldilocks approach to history. It can't be too early. It can't be too late. It just has to be the right amount of history and so on and so forth. And then so too in the majority opinion in Dobbs, the court relies on laws enacted after the ratification of the 14th Amendment in the 1800s, you know, and into the 1900s. And yet yesterday in Bruin, they claimed post-ratification adoption or acceptance of laws that are inconsistent with the original meaning obviously cannot overcome or alter that text. for when or lauding Justice Breyer for starting to do in his Bruin dissent, which is not to play footsie with a method of constitutional interpretation, originalism, which the liberals on the court have done from time to time, where that method would bind us to this history

in which women, Black people, other people of color, LGBTQ people, minority religious adherents, you name it. None of these people had any rights at any of the moments in history where, according to the majority, constitutional meaning is forged. And so if that's where constitutional meaning comes from, none of us are ever going to get any benefit from mining this kind of historical record if that's going to bind us today. And the principled objection, both to the method kind of writ large, and then to sort of how idiosyncratic and selective the invocation of history, even on its own terms, is, I think, was an important part of

the dissent, both in highlighting, I think, what is so wrong as a method with what the majority has done, but also hopefully in beginning to educate the public about how wrong it is to sort of suggest that this is how constitutional interpretation must be done. They not only call out the inconsistencies in the application of quote unquote originalism, but they're also really, I think, clear, although I think they probably could be sharper in doing this, about the inconsistent invocation of federalism by the conservatives on the court. Not necessarily in this for themselves through the process of democratic deliberation, that sort of classic federalism. You know, I really think that the dissenters here could have made more of the fact that just yesterday, this very same court kind of blew federalism out of the water by allowing the court and the majority to decide for the states how they were going to deal with this similarly vexed and fractious issue of gun control. And so there's a kind of selective and itinerant commitment to these conservative principles. They do it when it suits them, and they abandon them when it doesn't.

And, you know, this was pointed out with originalism, but I think they could have gone even further. This is what the dissent had to say about the consequences of the majority's methodology and requiring rights to be deeply rooted in history and tradition. The joint dissent wrote, when the majority says that we must read our foundational charter as viewed at the time of ratification, except that we may also check it against the dark ages, it consigns women to second-class citizenship. The majority, again, is trying to assess the scope of women's rights today by looking back to a time when women couldn't vote, when there were still coverture regimes denying women legal personhood. And that is their method. Like, even if it was a method that made any sense in the context of gun regulation,

which I am not prepared to concede that it remotely does, it just seems insane to suggest that there's no dispute that for most of history, women were formally and functionally second class citizens under our law. So to suggest that those legal regimes then bind us today from the perspective of what the Constitution means and protects just seems so profoundly misguided. So another hallmark of this final opinion that is consistent with the leaked draft opinion is the effort to till the soil of eugenics until it bears some craggy fruit. So footnote 41, which was also in the draft opinion, appears here. And it notes that other amicus briefs present arguments about the motives of proponents of liberal access to abortion. They note that some such supporters have been motivated by a desire to suppress the size of the African

American population. So here we are getting this connection between abortion itself and the fact that there are disproportionate rates of abortion among African American women. There is no discussion of the reasons why this group might be more inclined to terminate a pregnancy, like, for example, very high rates of maternal mortality and uneven educational and employment prospects. But why let that get in the way of a good narrative? It then goes on to cite my favorite Clarence Thomas concurrence, Box versus Planned Parenthood of Indiana, where Justice Thomas makes that attempt to link the history of abortion to the history of birth control and

Margaret Sanger and the eugenics movement, all for the purpose, I think, of making clear that there is a racist and racialized connection between abortion and the prospect of eugenic termination of a pregnancy. And the court ends with, for our part, we do not question the motives of either those who have supported or those who have opposed laws restricting abortions, because we're neutral, congenial respecters of alternative viewpoints. But note, this is entirely gratuitous. Like, this does not have to be in this opinion. If the logic of this opinion is that Roe and Casey are constitutional apostasies because they are not explicit in the Constitution and are not deeply rooted in

tradition, you don't need this. So why is this here? Is this just a nod to Justice Thomas, or is this doing other work? So frankly, it's a footnote like this that really just makes me inclined to discount their statements elsewhere in the majority opinion that nothing in the majority opinion should be taken to call into question, you know, the court's other fundamental rights decisions, like decisions protecting the right to access contraception, decisions protecting marriage equality, because it's not correct that they're not questioning the motives of people who have supported those who supported access to abortion. I mean, Justice Thomas has questioned their

motives, right? They did an oral argument. This is just, you can't take it seriously. The footnote, apart from the last sentence, questions their motives. It associates itself with questioning those motives. So the whole thing is bad, bad faith. It's not even that it's bad faith in terms of like, we're not questioning motives, we are questioning motives. Like, if the argument that there is some sort of eugenic link between Margaret Sanger and the 1920s campaign to root out certain populations, it's perhaps more forceful in the context of birth control, because that is fact, what Margaret Sanger was spearheading. She didn't care about abortion. She actually did not like abortion, but she was very much about expanding access to birth control. So, I mean, if you are a proponent of this view

that you can overrule past precedents because they're racist, as we saw in Ramos in 2019, I think the argument applies with greater force to contraception than it does to abortion. And maybe that's why this is here. Yeah. Okay. So we're taking through all of the most egregious parts of the majority opinion that it seemed this kind of premature crowdsourcing of some of the contents of the opinion might have

the effect of having Alito sort of roll back in some places does not seem to have happened virtually at all. So other things- Because he's always right, Kate. Right. Like the crowds can't tell him nothing. Again, it seems so naive that we were like, well, he's going to have the benefit of all of the critical commentary and he can strengthen his opinion accordingly. Like he somehow thought it was perfect as is and so didn't change very much at all.

So among the other things that he didn't change were the extremely thin two paragraphs on reliance interests, calling them sort of emotional and intangible as opposed to the most concrete kind of reliance interest. People literally make decisions about where to live and what to study and whom and when to marry, you know, against the backdrop of an understanding of an ability to access abortion. But none of that seemed to resonate at all with Justice Alito. The opinion also retains the claim that abortion providers and their lawyers basically made the court do this by claiming there was no daylight between overruling Roe and the chief justice's position, which we will get to in a minute, that basically would have upheld the Mississippi law without overruling Roe and Casey outright. The majority also doesn't touch what

were extremely thin two paragraphs on reliance interests. The fact that people have structured their lives around the idea that they can control when and whether to have a child. Just on this idea of Sam Alito dismissing all of the criticism of his majority opinion, I'm having this visual in my mind of him staring at himself in the mirror and saying, you're perfect, You're beautiful. You're Linda Evangelista. That's not the meme I was thinking of. Oh, okay. Well, I'm sure there are others that are applicable too. Remember the one of Shaq where he's like, oh, just brushing off the criticism? That's Alito. Yeah. Pounding down those energy drinks, being like, this is what I've trained for. Yeah, any of these work.

Red Bull gives you wings. from the leak draft opinion that courts should use when they determine whether abortion restrictions are constitutional. The legal standard is rational basis review. It is the most deferential standard of review under which courts can basically hypothesize possible justifications for a law. States don't need to prove that the law actually advances a legitimate interest. And most importantly, I think the majority retains the claim that a state's legitimate interests include respect for and preservation of prenatal life at all stages of development. And under that logic, complete abortion bans would be constitutional. And it's not clear whether that standard would require states to adopt meaningful exceptions

in cases where abortion might be necessary to save the life or health of the mother. The dissent characterizes the legal standard this way, saying the court's majority says that from the very moment of fertilization, a woman has no rights to speak of. The final opinion also retains some remarkably bad faith claims about the political process. So it notes that women on both sides of the abortion issue may seek to affect the legislative process by influencing public opinion, lobbying legislatures, voting, and running for office. Run for something, ladies. I'm sorry. I just like the idea of Justice Alito encouraging women to run for office.

As he finishes, he notes, women are not without electoral or political power. I don't disagree with that, but I think it's in remarkably bad faith to suggest that a fundamental liberty that you have withdrawn is now something that women need to be understood as a full person. And that's the part, I mean, I do think the only answer here going forward is to work in the political process and to vote and to be very active in organizing on the ground. But this idea that this guy is the one like, hey, ladies, you should just run for school board. I mean, it's also remarkably bad faith, given, as you said previously, Melissa, the court has made the political process less accountable to the will of voters. The court has greenlighted voter suppression, partisan gerrymandering that allows politicians to stay in power even when a majority of voters vote them out. It has allowed states and is poised to allow

them even more to dilute the voting power of racial minorities, you know, the very group that will bear more of the brunt of this decision. So yes, of course, right, you can vote and this issue will be resolved in the political process. And you should vote. You should vote. Yes, you should vote. But to say this is all going to be fine because your preferences will just be registered at the ballot box vastly oversimplifies things, again, given what this court has done to our democracy. What this court and Sam Alito personally, right? Brnovich is, of course, an Alito opinion. That's just the most recent of this line of cases. But it's not like a

well-functioning, responsive political process at the state and local level. And the court is significantly responsible for some of the reasons why. And so just like, don't worry, democracy will sort it out is a facially indefensible claim for him to make. That's why he's making it, Kate. Right. I will say there is some slightly toned down language in the draft opinion. Justice Alito no longer says there is zero and none, you know, regarding the historical basis for abortion. So as we're recognizing personal growth, congratulations, sir. You have shown some- That's the Drake meme. That's the Drake meme. Yeah, there is some historical precedent for this, I guess. But still, no abortion for you. No. Responded to that constructive analysis of his historical claims super well. So that being said, he also adds some not great stuff as well.

Is that the legal term for it? Not great stuff. Just do it. You know you want to do it. I am please trying to keep it clean. I'm not trying to keep it clean. I would like to air out my grievances against the people who I frankly hold most responsible for this, which preview listeners is not actually the five justices in the majority. Okay. So this is like your version of the marshmallow. You're deferring gratification.

Okay. I'd love to see it. I wish the court could do it. I wish the court could do it. Not capable. This is the YOLO court in an opinion authored by yolo lito um so have we said this i don't think we've used yolo before or just yolito might be okay i don't know yolito i love that there's one good thing to come out of this dahlia and that is this new coinage but i don't know if it's yolo we are, Yolito. Squeaking by just barely. This opinion does add things than, you know, what... Of course it does. Things that weren't in the draft leaked opinion, you know, in some ways underscores the idea of fetal personhood and potential life,

writing that the most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the state's interest in protecting fetal life. And just by repeatedly underscoring that states in the present day, as well as historically viewed fetuses as human beings and, you know, beings with life, is really paving the way for restrictive abortion laws and the possibility of a jurisprudence of fetal personhood. Right. So yeah, having, you know, protectable life interest and then protectable constitutional rights, rights that must be respected, right? It does feel like it's just a couple of steps to getting there, although this opinion certainly doesn't say that explicitly. Okay, so that's the Alito majority opinion. There are also several concurrences, and they really range. And so maybe we should start with what I think is the most important concurrence, which is the Justice Thomas concurrence, which is kind of unimaginably terrible and deranged. Is it unimaginably terrible and deranged? It's not unimaginable. What are you talking about? This is like...

I feel like there were two options for this concurrence. There were two options for this concurrence. One was, let's go fetal personhood now. And the second option was the one we got. So the one we got was, remember that stuff the majority opinion just said about how cases like Griswold, which protects the right to access contraception, and Lawrence, which prohibits states from criminalizing same-sex sexual intimacy, or Obergefell, which says the Constitution protects the right to same-sex marriage. Remember how Alito, a couple pages ago, told you none of that is in jeopardy or at issue in this case. That's crazy. Of course it

all is. So Thomas says, in future case, can I just quote him? Let's rule it. He does say, I agree with that. Right? In principle. We are not today overruling Griswold, Obergefell, and Lawrence. We are not today overruling those caseswold, Obergefell, and Lawrence. I'm leaving the marshmallows. We are not today overruling those cases. That marshmallow is for later. He does say that, but he goes on to say, in future cases, we should reconsider all of this court's substantive due process precedents.

All of it. Including, he lists Griswold, Lawrence, and Obergefell, although not Loving, interestingly. Does not mention Loving versus Virginia because he has some sense of self-preservation and he has to go home tonight to his mother, I mean his wife. I'm sure he and Ginny have never discussed the future of loving and bans on interracial marriage given that their professional lives are completely separate. Completely separate. So this was like basically lifted out of the some geniuses, Adam Mortara and Jonathan Mitchell.

Oh yeah, their amicus brief Mitchell burn book brief, right? But can we just say quickly, though, because he says like three things. Those cases are not cast into doubt today. They're not overruled. They're not even cast into doubt. But we should reconsider them. And then in like the next sentence, he says, any substantive due process decision is demonstrably erroneous. And therefore, we have a duty to correct the error established in those precedents. And then he says, after overruling these demonstrably erroneous decisions. So in like four sentences, it's done. It's like, in my mind, I can see it all. I can see how it all comes together. And then there is this lip service page like, well, maybe there are independent

constitutional theories that would support the results in cases like these, like the privileges or immun or Immunities Clause, which he has long been really interested in. But none of that matters as far as I can- That's the bone he's throwing to liberals. I mean, he's always claimed that there is no basis for the Due Process Clause being a font of individual rights. It should be the Privileges or Immunities Clause. Slaughterhouse would like to have a word about whether that is indeed the case. Slaughterhouse is the 1873 decision that effectively says that the Privileges or Immunities Clause will not be a font of individual rights. But he has said it should be overruled. But yeah, go on. What's precedent to stand in the way of a good time? But the best part of this is when he's talking about, you know, we have this duty to overrule

a decision that is demonstrably erroneousous as though this were a precedent that he's calling upon. The precedent that he's citing is himself. And all I can think about is that song by the Divinals. Like, I touch myself. I cite myself. That's – I mean, I know. I'm sorry. Like, I had to find the silver linings today and one of them is like Justice Thomas citing himself.

Like he literally cited himself for all of that, his concurrence in Gamble, all of it, McDonald, all of it. And I remember you noting when he first wrote in the Gamble concurrence, I think that was the first formulation of the demonstrably erroneous standard. Yes, in 2019. In 2019. Just a few short years ago. And you were just like laser focused on this is the language. This is the language that he's going to use to kind of change the way the court approaches stare decisis.

And as I think, I know, look, he's just writing for himself right here. Some very learned men wrote an op-ed saying the liberals case for Brett Kavanaugh. Wait, are we ready to talk about that? Neil Gorsuch. No, I'm not yet ready. Not yet. Another teaser. I just want to say,

I really feel like I'm laser focused on Justice Thomas because I think like our wands share the same dragon string part. Like maybe I am the Harry Potter to his Voldemort. I'm seeing like these clashes in the sky of the two of you, like stuck together through that kind of electrical current and then breaking apart. I think it's right to focus on Justice Thomas because he has been laying these breadcrumbs and, you know, seeding the direction of the court's jurisprudence. And that's now where the court is today, where Justice Thomas was two years ago, five years ago, 20 years ago. So he's totally undersold as the sort of architect

of the conservative legal movement. Everyone likes to talk about Scalia, and they totally overlook him for, I think, a lot of different reasons. But he has really husbanded these totally off-the-wall theories and allowed them to flourish among the lower federal courts with his acolytes slash former clerks slash current judges. And he shifted the Overton window in ways I don't think people give him credit for. But I see where he's going. That Thomas concurrence came after the Alito majority opinion insisted that, you know, they were not questioning Griswold,

Lawrence, and Obergefell. So the majority writes, we have stated unequivocally that, quote, nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. We have also explained why that is so. Rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter uniquely involves potential life. Just like a few beats on this, you we noted in our episode analyzing the draft leaked opinion, this is the least satisfying legal analysis or answer you could give because in some ways it just reveals that the majority is doing a freewheeling interest balancing and policymaking. You know, this isn't a textual or historical difference between these different rights. It's just the majority's claim that the normative values differ in these cases. And so the only question is, well, how does this majority view those other rights?

And what do they think they can get away with politically? Like, where do they think the can get away with politically? Like, where do they think the conservative legal movement wants to go? And the dissent really picks up on this with, like, some very strong Dumbledore energy. So they note, and no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. Either the mass of the majority's opinion is hypocrisy, yes, or additional constitutional rights are under threat. It is one or the other. The dissent also highlights the Thomas concurrence, in particular the part that we were just talking about, in saying, look, the first problem with the majority's account, that is its insistence that nothing else is in jeopardy,

comes from Justice Thomas's concurrence, which makes clear he is not with the program. That's what they say. That's literally what they said. That is a quote in the U.S. reports that Clarence Thomas is not with the program. Justice Kagan, yes. Absolutely. And this is us guessing because, again, there is no author identified for the different paragraphs. But I would stake anything on Kagan's hand having written this paragraph. Not with a program. Different program. So to continue, the Kagan part of the joint dissent says,

in saying that nothing in today's opinion cast doubt on non-abortion precedents, Justice Thomas explains he means only that they are not at issue today. And then the joint dissent goes on to say, nor does it even help just to take the majority at its word. Assume the majority is sincere in saying, for whatever reason, that it will go— Assume I disagree. Assume I disagree. Yeah. It is sincere, for whatever reason, that it will go so far and no further.

Scouts honor, right, also literally in the opinion. Still, the future significance of today's opinion will be decided in the future. The law often has a way of evolving. So they are not remotely confident in these assurances from the majority that this case is not going to be extended very quickly to other domains. And this, I think, tees up, you know, the question that I wanted to turn to, which is like, there are people saying different things about the directions this court will go, you know, whether this court will, in fact, allow states to undermine access to contraception or criminalize certain forms of contraception, whether the court will allow states to undermine

marriage equality or rights to same-sex sexual intimacy. And at any point in your life, there are questions about who you are going to listen to, whose voices you are going to elevate. And I guess I just want to humbly fucking suggest that- Humbly fucking suggest it do it maybe the people you should be listening to maybe the people you choose to elevate shouldn't be the ones who told you not to worry and in fact to support the nominations of three of the justices in the majority justice ne Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Because I am sick and fucking tired of seeing Neil Katyal on every single fucking press outlet after he introduced Neil Gorsuch at his confirmation hearings and wrote in the New York

Times the liberals case for Neil Gorsuch or Akhil Amar doing this for Brett Kavanaugh or Noah Feldman doing this for Justice Barrett. I mean, the reason why it drives me mad is because there is this like meme and thinking that you get all of these accolades and like great things when you say these left things, like when I call this court the YOLO court, or when I say Brett Kavanaugh is going to be a liberal's nightmare on the Supreme Court. And maybe there is some difference in cultural power versus political power that doesn't buy you any institutional credibility or political authority. Instead, we keep giving the platforms and the airtime to the people that led us here. And the people who are warning about this are constantly being minimized as being

hysterical and not doing serious analysis when they were right. And I just wish people would like step back and realize like who who said this was coming i i'm not saying you know these people like need to be canceled or like forever hide their heads in shame but like at a minimum i would want to see some public acknowledgement that they feel like they erred right an admission that i was wrong i I shouldn't have done that. And yeah, like just that. I actually thought you were going to talk about the Akhil Amar podcast where he basically called out you and Steve for saying that there was more to come from this. And he was very adamant. When he called the piece that I co-wrote with Steve poop? Yes, that one.

That's a quote. Yeah. But the point you make is actually, I think, an important one to make in this moment where we're thinking about a decision that severely restricts the rights that women enjoy because a theme that you have not highlighted, although you might intuit it, listener,

from what Leah is saying is, we listen when certain men talk and we minimize when women object and say other things. And like, you know, we started this podcast because we were fucking tired of hearing so many men tell us about the courts and not tell us about the things that actually matter to us, like the people who are deeply, deeply impacted by the work that the court did, like the sort of neutral, studied, both sides now kind of commentary. You know, we wanted to actually hear what the hell is going to happen on the ground for people.

And that's why we started this podcast. But, you know, we've been called hysterical. We've been told to shut up. Someone told me, like, I need to go cook my husband dinner instead of being on this podcast. I've been likened to Josh Hammer. I mean, I'm just like, we were right. We were fucking Cassandras. And we said this in 2019. People thought we were batshit crazy. And here we are, 2022. And I take no pleasure in being right about this. I mean, this is devastating. But damn it, can you just listen to us occasionally?

So one big takeaway here is if you are in a position of filling television slots or op-ed But damn it, can you just like listen to us occasionally? Exclusively, but women, but people who from the beginning kind of understood how grave the danger that much of American constitutional jurisprudence and society as we know it was in based on the change composition of the court from very early on. And those are the voices that really need to be elevated right now. Hashtag not all women, though. I don't want to minimize women's voices and how Amy Chua was quick to point out that Brett Kavanaugh is an excellent mentor to women and that her daughter would be clerking for him. You don't need to book her. Girl boss. All right. Well, that was worth waiting for, Leah.

Do you feel better? You know, no, that's the thing. I don't feel better. I feel worse, right? Because now, this is not going to be good for me, but I still feel like it has to be said. I feel like I have been in constant kamikaze mode since 2016. we were saying this, Leah was untenured. So it actually was incredibly brave and possibly not without consequence that she was saying this. So props to you, Leah, for doing that. I'm sorry that, you know, it turned out we were right about everything and that we're going to be right about all of the rest of it. But I hope people understand how much of a risk you took and are grateful for your voice during what was the lead up to the annihilation. And now it's here. Okay. So-

This has been such a positive episode. I feel like we're giving women credit, talking about this opinion. We're finding silver linings everywhere. Well, maybe- Blowing up silver lining? Well, I think the silver lining is- Like the catharsis might be the silver lining. Oh, yeah, the cathartic. Someone did put in our DMs that the last couple of episodes have been real downers. And we're like, that's not really on us, but sure. But I'm trying to kind of bring-

Blame Sam. We just work here. I'm trying to bring some sort of shards of hope out of this. And one shard of hope might be highlighting the range of other voices who could speak credibly on this question. And I hope that those who are in charge of booking for news, whatever, really take that seriously. Maybe now's not the time to hear from the men's. So maybe in the spirit of continuing to elevate the right voices, we'll read a little bit more from the dissent in the case. So one theme that I think we haven't really touched on explicitly that the dissent highlights is just how much this is really about power and not about law, or much more about power than it is about law. So maybe should we just like read some of these passages from the dissent?

So the dissent says, power, not reason, is a new currency of this court's decision making. And they are quoting what was Justice Thurgood Marshall's last dissent on the Supreme Court, a quote that Sherrilyn Ifill had previously flagged. The dissent also describes the change as radical. It says it makes radical change too easy and too fast based on nothing more than the new views of new judges. The majority, again, still quoting the dissent, has overruled Roe and Casey for one and only one reason, because it has always despised them and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law. And to end on a really strong note,

the dissenters say, today, the proclivities of individuals rule. The court departs from its obligation to faithfully and impartially apply the law. We dissent. So not respectfully, just dissenting. This is all vibes, no law. Yeah. So I think the final closing of the joint dissent is also worth highlighting. So the joint dissent quotes at length from the controlling plurality opinion in Planned Parenthood versus Casey, which relied on the doctrine of stare decisis, respect for precedent, to not overrule Roe versus Wade. And after quoting from that, the joint dissent says, the justices who wrote those words, O'Connor, Kennedy, and Souter, they were judges of wisdom. They would not have won any contest for the kind of ideological purity some court watchers want justices to deliver. But if there were awards

for justices who left this court better than they found it, and who for that reason left this country better, and the rule of law stronger, sign those justices up. They knew that the legitimacy of the court is earned over time. They also would have recognized that it can be destroyed much more quickly. They worked hard to avert that outcome in Casey. The American public, they thought, should never conclude that its constitutional protections hung by a thread, that a new majority adhering to a new doctrinal school could, by dint of numbers, alone expunge their rights. It is hard, no, it is impossible to conclude that anything else has happened here. One of us once said that it is not often in the law that so few have so quickly

changed so much. For all of us in our time on this court, that has never been more true than today. In overruling Roe and Casey, this court betrays its guiding principles. And we should say that the one of us is Justice Breyer in a piece that he wrote about Brown in 2022. The final paragraph is short and just reads, With sorrow for this court, but more for the many millions of American women who have today lost a fundamental constitutional protection, we dissent. It's a very powerful writing. And there are a couple of other writings that we should at least briefly mention before we wrap. One is that the Chief Justice, we talked at length about the Thomas concurrence, the Chief Justice also concurred. The extent of the dissent's reference to it is literally one sentence, which I think broadcasts

how irrelevant the dissent believes. And I think the dissent is right about this. The chief justice's separate writing is. So the dissent writes, we believe that the chief justice's opinion is wrong too, but no one should think that there is not a large difference between upholding a 15-week ban on the grounds he does and allowing states to prohibit abortion from the time of conception. So, yeah, he's wrong, but no one should think there is not a large difference. Like, what this extremely turbocharged majority has done is absolutely radical. Even the chief seems to recognize that, but the chief is wrong, too. It's kind of like, it's nice you tried. Thanks.

Right. That's the energy. It's interesting. They could have tried to make much nicer with him, and there was clearly no appetite and no interest for doing that. And even though I actually think the dissent is sort of right about the most effective way to kind of broadcast the irrelevance of the separate Roberts writing by just like having this one parenthetical description of mention of it, Alito, just because he cannot help himself, right, he has to take these swipes at Roberts, whose vote he doesn't need, and who, again, has written something pretty irrelevant, but Alito has to go after him. So he criticizes the Roberts concurrence in a bunch of different places, in one place saying the concurrence's most fundamental defect is its failure to offer any principled basis for its approach, which I have to say that sentence and just the Alito kind of nastiness with respect to

the Roberts concurrence did make me wonder, I think we talked about this previously, but did Roberts or Thomas assign this opinion to Alito? Like Roberts was voting to reverse, to uphold the Mississippi law. So I think Roberts did have the power to assign it and made the choice to assign it to Alito. The other possibility is that Thomas did, but I think under ordinary rules, it would have been a Roberts assignment to make, and he chose to give it to Alito. Or do you think he was not in the majority initially, and then he just was like, okay, this is going to happen anyway. Let me just, like, I'm not going to hitch my wagon to these losers. Or he tried to write.

And I'll just try and do it. He tried to write what he thought. He said, let me assign to myself the majority. I mean, I guess, you know, maybe they vote, they cast two separate votes, one with respect to the Mississippi law and one with respect to overruling Roe. And if, you know, the assignment was made on the basis of both and not just one of those votes, I really don't know. It's possible he could have tried. Or is this his penance to the right for June Medical? But why would he write it all if that's what he's worried about? Why wouldn't he just then go along with the Alito approach? Well, I think, I mean, this to me reads like the concurrences in Bruin yesterday, the one that the Chief Justice joined that Kavanaugh wrote, where, I mean, they're basically trying to say like, okay, ladies, don't get too hysterical. It's not a big deal. It's actually very narrow. We could have made it explicitly narrow, but you don't have to worry because it actually is narrow. It's only this. It

just returns it to the states. And then I think he's in a fit of pique and he has to include some of this. There was another way to go. You all didn't want to go there with me. But just to be clear, this decision isn't as maximalist as you would have it. I just don't think Roberts is even saying that. I think he's saying, I'm offering a non-maximalist route. But I think the inference you draw from the, you know, alternative that Roberts sketches is that it actually is a really maximalist approach that Alito has taken. And also, like, how could you move any other way? Well, it is. I mean, I just, I think he wanted this said, he wanted people to know that there was another way and that you don't have to read this in the way Thomas and Alito. I mean,

like notably, we don't get anything from Gorsuch or Barrett. So maybe this decision is for them. Yeah, maybe. Yeah. What about the Kavanaugh concurrence? We should talk about that. Yeah. So Justice Kavanaugh also wrote a concurrence. It's like somehow even worse than I thought a Kavanaugh concurrence in this case would be. You know, at one point he suggests, yeah, like I'd probably be cool with like a federal ban on abortion. So he writes, quote, that issue, meaning abortion, will's decision stops the federal government from prohibiting abortions nationwide. In fact, already House Republicans are eyeing a 15-week abortion ban after this ruling. speaking, said, having been given the second chance for life, we must not rest and must not relent until the sanctity of our life is restored to the center of American law in every state in the land. Yeah. So the Kavanaugh concurrence, super concerning. I mean, he does say one thing,

independent of the, I think, pretty strong suggestion he would be okay with a federal ban, which is what he basically says, I'll quote here, some of the other abortion-related legal questions raised by today's decision are not especially difficult as a constitutional matter. May a state borrow a resident of that state from traveling to another state? In my view, the answer is no, based on the constitutional right to interstate travel, which is an article, wait, what? Where is that exactly?

I mean, they're like, the court has said there are parts of the – no, it's actually not explicitly. There are a few different parts of the Constitution that the court has said, read together, must protect – But this is an implied – But my point is it's an implied right, definitely. And yet he says with that, just kind of breezily suggests that, of course, that right would prohibit a state from preventing women from traveling to other states to obtain abortion care. And yet, even though I think it's less significant in some ways than his language seeming to broadcast a support for a future federal ban, it is definitely important if that's a critical part of his general view of

constitutional constraints in this domain, because right now, it does look like he is the fifth vote for the Alito opinion. And if he wouldn't be willing to go along with an opinion upholding a state prohibition on interstate travel, that is significant from the perspective of the numbers on the court. Okay, so he's saying this today, I mean, like, do you really expect him to hold firm and fast on this particular? It's categorical enough that he would have to work pretty hard to walk it back. So I think it would present a real obstacle. But of course, he could walk anything back.

It's almost like he could appear before the Senate Judiciary Committee and say that he thought Roe was settled precedent and then, wait, I'm sorry. No, of course. But then misrepresenting their views. There wasn't briefing on that issue in this case. And, you know, it was like the majority in Bruins said they are confined to the historical record as presented by the parties, which gives them substantial wiggle room to basically say, I don't think the briefing was satisfactory on that issue in a prior case. And so I don't have to respect that prior case. And here, right, like that issue hasn't been briefed. Absolutely. But if he wanted to protect himself from, I think, pretty obvious accusations that he is just a hack and unprincipled, I think he should have cabined more. His suggestion that not before us, but my instinct, right, to try to broadcast for like

some good PR his receptivity to a right to travel claim. But he says it quite categorically. So I think he's making it much harder, at least for himself to reverse course. Of course, that's possible. But I think it will be difficult. In addition to expressing his unadulterated support for the implied right to travel. Coach Kavanaugh also reiterates his bro philosophy and, you know, does so in a way that will be enshrined forever in the U.S. report. So here's what he has to say. In my judgment on the issue of abortion, the Constitution is neither pro-life nor pro-choice. The Constitution is neutral,

and this court likewise must be scrupulously neutral. The court today properly heeds the constitutional principle of judicial neutrality and returns the issue of abortion to the people and their elected representatives in the democratic process. I want that on a sweatshirt. The constitution is neither pro-choice nor pro-life. We knew it's bro-life. It is bro-life. The constitution Constitution is bro life. Is it also bro choice? I like that. Yeah. Also bro choice.

Bro choice is for bros, for sure. It's definitely bro choice, actually. Yeah. Yeah. I like that. Bro choice, bro life. Yeah. Classic move from Scrotus.

Okay. If it wasn't so grim, that would be a good episode title. We haven't said that in so long. I know. This is a good day to bring it back. That was from the beginning. We, that would be a good episode title. We haven't said that in so long. I know. This is a good day to bring it back. That was from the beginning. We said that in 2019. Scrotus.

Scrotus. I assume our crooked overlords will be fine with that term. We haven't wrote it down. Guess we'll see. Who doesn't love it? Guess we'll find out. So we've gotten some reactions. Senator Joe Manchin said,

I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they believed Roe v. Wade was settled legal precedent. And I am alarmed they chose to reject the stability of the ruling has provided for two generations of Americans. I trusted him. He said he loved me. The greatest power that a senator has is to issue statements to the press. This is definitely true. Or they could tweet them.

That's a great power as well. Ooh. I like that. Senator Susan Collins also had some things to say. And if you'll recall, Senator Susan Collins was sort of the senator of interest during the Kavanaugh nomination. So she had this to say. This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting longstanding precedents that the country has relied upon.

She, too, has been taken in and yeah, surprising in a surprising fashion. Troubled by this. The Attorney General Merrick Garland, for whom this must have been a difficult day because had things gone differently, his vote and not Neil Gorsuch's would have been, well, none of this would have been litigated the way it was at all. And many, many things would have been very different. But of course, he's not in the Supreme Court. He is the Attorney General. While noting that overturning Roe means eliminating a fundamental right, also sort of turned the focus to medication abortion and included in his statement, quote, the FDA has approved the use of the

medication mifepristone. States may not ban mifepristone based on disagreement with the And included in his statement, quote, the FDA has approved the use of the medication mifepristone. States may not ban mifepristone based on disagreement with the FDA's expert judgment about its safety and efficacy. So it seems to be broadcasting an aggressive strategy of federal preemption, federal arguments in favor of federal preemption of any state law that seeks to obstruct access to medication abortion approved by the FDA. Safe, effective, safe,

effective, again, only for early abortion. It does not present a real option for women who discover they're pregnant later than 10 weeks, have detected anomalies that are incompatible with life after 10 weeks. But for many, many women who would like to elect abortion, access to medication abortion actually really is a development that's a hugely significant one in the decades since Roe was decided. And I think it will be an important source of potential federal response to the decision, which is to facilitate access and to guard against state efforts to impede access to medication abortion. So I'm glad Garland highlighted that in his statement. But it's worth putting a line under this to make clear that this is one of those issues where voting and maintaining control of the administrative state is really going to be important, right? So, I mean, if there's a change in the administration, the FDA's priorities around mefepristone is not going to be the same as it is now. So like, this is one of those places where if you want to preserve this as a safe haven, you really do need to exercise some political will here. And, you know, we have

seen that the Senate has been unwilling to kind of codify a right to an abortion. I wonder if there is like any chance of finding a filibuster proof majority to codify a right to contraception, right? Like put that bill on the floor and see if Republicans are willing to go along with it. And if they're not, right, that's a pretty big tell about where we might be going next. And, you know, just thinking about timing, releasing Dobbs the day after you release Broon. And this is the first full term that this court has been together. The first. And it's just quite a flex to do this. And we probably should have taken the hint and gotten the clue when a majority of the court cited Dred Scott and used its reasoning to interpret the Constitution, really working our way back to the pre-13th Amendment universe. But it is where we are.

All right. The joint dissent links all of this to Texas SB-8, which I think we ought to highlight. Earlier this term, this court signaled that Mississippi's stratagem would succeed because Texas was one of the fistful of states to have recently banned abortions after six weeks of pregnancy. It noted that this flagrantly unconstitutional restriction had in it an unprecedented scheme to evade judicial scrutiny. That was Justice Sotomayor dissenting in Whole Women's Health versus Jackson. And she noted that five justices essentially acceded to that very cynical maneuver, allowing Texas to defy the court's constitutional rulings, essentially nullifying

Roe and Casey ahead of schedule in the nation's second largest state. And now it's worth noting that the other shoe has dropped, courtesy of that same six-person majority. They have essentially done what they telegraphed they would do earlier by allowing SB8 to go into effect. And now we're going to see what happens throughout much of the country. And of course, people are wondering what to do now, what can be done. On previous episodes, we have highlighted the importance of contributing to abortion funds as well as, you know, getting involved in upcoming elections. And those things are necessary, but they're not sufficient. decision is the culmination of a decades-long plan that was pushed along with help from Leonard Leo and Ed Meese, who had such a hand in organizing and coordinating the Federal Society.

And it is going to take decades, just like their work did, in order to change the world we are now living in. It's not just going to the polls that is important, but movement building and like organizing now so that there are structures in place, you know, with like candidates who can win elections and then win elections in the future so that there are networks of lawyers to fill state and local governments and federal governments and get judicial appointments, and that there are think tanks, right, supporting, you know, all of these goals. And I also just think it's a fact that like the people who got us here by saying, right, we didn't have anything to worry about, or we should like trust in like these institutions,

I'm just kind of skeptical that they are going to be the ones to get us out of it. We're recording just a couple of hours after the opinion was issued. So it's Friday, and there are rallies happening in New York City tonight, I am sure elsewhere, both tonight and throughout the weekend. So if you know, getting near your people, and making your voice heard, is one kind of short term way to respond, like there will definitely be outlets for that. And Leah was alluding, of course, to voting. You know, as Biden said when he gave a public statement a couple of hours ago, you know, he said Roe is on the ballot. I think we should just say abortion is on the ballot.

Right. Roe is not on the ballot. I'm not sure that's helpful. But it is not just on the ballot in the sense of the congressional midterm elections. Like it is as important and maybe more important to focus on the degree to which questions of abortion and other fundamental rights are on the ballot in terms of the state races, not just for, you know, elected office in, you know, state executive and legislative branches, but state courts, there are a number of state courts that are in the balance in the next year in terms of pivotal seats coming open. Kansas, for example, has a constitutional amendment that would overturn a state Supreme Court decision that

found that the state Bill of Rights protected a right to abortion. So voting, and again, up and down the ballot, and not just for office, but on ballot questions, is absolutely critical. November in a lot of places, but there are elections this summer and in the early fall. So all of them are really critical right now. I want to underscore that. I think earlier, I guess in the last week or so, I think I said something to the press about, you know, when this decision finally drops, you can either cry or you can vote. And I got some blowback from, I assume people who, you know, are engaged, but who, you know, doubt whether voting is going to be consequential here. And I'm just like, I don't know that we have any other choice. I mean,

we kind of have to build a movement in much the same way the conservative legal movement orchestrated this and assiduously husbanded it over a number of years. But we have to vote in the meantime. And I know it sounds, you know, incredibly passe, but you have to get out there, like get out the vote. People who don't typically vote need to get out, especially for the midterm elections that see sort of a dip in voter participation. And it's not just the state elections, but also the local elections. Like, you know, who is the prosecutor in your jurisdiction is going to be enormously important because that individual will have wide discretion to determine, based on how some of these laws are written, whether or not they're going to prosecute and who they're going to prosecute and for what. So again, state AGs, state secretary of states, because of the whole question of the independent state legislature

doctrine. And then all of these questions, like they're all inextricably linked. Leah has said this before, and I know it sounds like the oldest trick in the book, but we do have to actually vote. I mean, we can sleep it off for a day or two. Yes. I mean, we can sleep it off for a day or two. Once we pull ourselves out of bed, off the floor. Self-care is important. I'm ready to go. I mean, black women have been ready for this for a long time. We've been saying this for a long time. And we've been saying that these issues can't be siloed, like the impositions on the right to vote have ripple effects. And this is one of those effects. So I'm here and I'm ready and let support from Amelia Montooth.

And summer intern support from Anushka Chander.